02/01/2005

City of Copies: Marvel vs. NC Soft

In the off chance that you've been asleep for the past month and haven't wandered across the large expanse of the gaming internet, you might not know that Marvel is suing NC Soft over copyright infringement.

The gist of it is that basically, NC Soft is infringing on Marvel's characters with its game City of Heroes. It's not just that you can build heroes in CoH, it's that you can build Marvel heroes, or at least close facsimiles to Marvel characters. I would imagine for this case to hold any weight, Marvel is going to have to prove somehow that NC Soft made some money off of Marvel characters, by allowing people to create or use said characters.

In the interest of trying to see what all of the fuss is about, I purchased a copy of the game, installed it (five hours, thanks for asking), and the next day began creating Marvel characters...

The Case for Marvel

Meet Woolvereene. I had to use that because Wolverine, Wulverine, and Woolverine were all taken. I could have resorted to numbers, but hey, even I have standards. Immediately, I was concerned that NC Soft had allowed no less than three players on just my one server alone to play with Wolverine!

As you can see, he does bear some resemblance to Wolverine: the uniform is yellow, and the blue tiger-striping is there. He even has the swept-back mask thingie, and his boots are blue and everything.

But I'd be hard pressed to look at that and agree that that guy's a copyright infringement. Yes, having the claw power and the regeneration power take it a few more degrees into infringement territory, but uh, that guy? Not Wolverine.

Wolverine's in the details. The sleeveless shirts. The hairy arms. The matching swoops on the boots. The menacing intimidating smile. The guy I made looks like an insurance salesman at a costume party, regretting his decision to dress as his favorite comic book character because, well, people started asking a lot of questions, and now here he is trying to explain why Wolverine only has just a first name, and how he came to have a metal skeleton, and oh god, he was never going to get that date with Sheryl in accounting now. Weak. Sauce.

Next up, we have ManSpider. Look out Peter parker, because the Red and Blue Beetle Guy is coming to steal your copyright.

Okay, so he's got the same colors as Spiderman, but that's about where the buck stops with this one (and before anyone wants to play ubernerd, yes, I know I got his glove color wrong). Mask? Wrong. Logo? Wrong. Webbing? Costume Design? Powers? Wrong wrong wrong. There's so much wrong here it takes a concerted effort to pretend that it's even in the same universe as "right."

You can't swing in City of Heroes. I don't think there's any real "Danger Sense," either. If there is, it certainly isn't Spider Sense. While there are webs in the game, they're in the form of a grenade, and it's not like webs are really part and parcel to a copyrightable material, at least not webs that don't originate at someone's wrist-bone. Bottom line: You can't make anything even close to Spider-Man.

Meet The Sulk. I chose that name in particular because of PvP's strip on the same topic. Yes, I'm more original than that. No, I don't care to try when I'm copying one of the most boringly visual designed characters in comic book history.

When I started writing this, I was determined to use The Hulk because it was going to be an easy bone to throw Marvel. Hell, you can make a character that looks exactly like a Marvel character! He's huge! He's green! He has purple pants! He has…BOOTS?

No, seriously, you can't go barefoot in City of Heroes. You must have proper footwear. I don't know if it's a no-shirt, no-shoes, no superheroes thing, but if you intentionally made it so that you can't have barefoot heroes in your game (can anyone name another big-named hero who's sans shoes?), I'd say that the concept that NC Soft intentionally made it so that their game could infringe on Marvel's copyrights is getting a little bit shaky.

I mean, if you can't easily copy the Hulk, what can you copy?

As it turns out, Cyclops.

This here's Eyeclops. I had a lot of fun making this one, because, well, I thought it looked the closest to any of the Marvel characters. This one's nearly identical in my book.

Granted, I wound up using two different eras of Cyclops to make this costume, but I think it might have been a mistake to leave the visor in the costume shop. Although, it's hard to say that only Marvel has a copyright on this kind of visor, I mean, you don't see them suing Pixar over Gazerbeam, do you? Wait, don't answer that just yet.

But we're not done yet. There were two more characters that I thought were famous enough to attempt to create: The Thing and Iron Man.

As it turns out, neither one really turned out much like the original. I guess Ben there looks the most like his counterpart of the two, but it's just on his torso. You can't take that texture and apply it throughout the head, and hands, and feet (again with the bare feet thing!). And Iron Man, well, it's best we just don't speak about that failed attempt. After all, this lawsuit is all about maintaining that NC Soft willingly allows and facilitates the creation of Marvel properties, which leads us to:

The Case for NC Soft

So there I was, just thirty minutes into my little experiment, and I'm thinking to myself that Marvel actually has a case here. I mean, I don't believe that NC Soft willingly put these characters in the game. It's obvious to me that the artists and designers on this game are fans of the genre, you know, Superheroes, and started throwing in little bits and pieces of their favorites.

I was going to argue that really, this lawsuit is like trying to sue Legos for allowing people to stack bricks in a fashion that would allow them to make things that looked like Marvel superheroes. All NC Soft did here really was give us the basic building blocks of everything superheroic (unless you wanted spider-powers, then you're hosed), and it's the fans, the customers, if you will, you took those pieces and assembled them in a fashion that resembled Marvel copyrights. And just what is copyrighted? Are the pieces copyrighted? Is Wolverine's boot shape and pattern copyrighted? Or is Wolverine "the whole" the copyrighted property? I could see the argument for the boot, but where does that end? I mean, he also smokes cigars. And wears wife-beater tees and jeans on his days off. If we're talking about litigation where Wolverine is concerned, I think the Marlboro Man would like to have a word with you, Marvel.

But then this whole thing got even more interesting. I logged off and logged back onto the server.

What I had found was that NC Soft had gone back in and modded four of the six characters. Woolvereene, ManSpider, The Sulk, and Eyeclops had suddenly become Generic Hero # 1757-1761.

It had taken less than about thirty minutes from the beginning of this experiment until NC Soft shut it down. I barely would have had time to finish the tutorial with one of the characters. They are so interested in their own property and protecting it from this litigation that they've made it impossible to play with anything that closely resembles a Marvel property.

Unfortunately, this is about where this experiment ends. I logged into the game (and found it to be pretty damn entertaining), and found absolutely zero characters that were even a close facsimile to a Marvel character. I did, however, see tons of Dark Knight1 and Superior (Superman) characters, but then, DC isn't suing NC Soft. Put whatever import and weight onto that last sentence that you care to.

Also, just a heads-up to the Fox Network: You might want to consider a lawsuit against NC Soft. They've intentionally made it so you can play as copyrighted Fox animated sit-com characters. Remember, you read it here first, folks.

I recently read your article on the Marvel vs. NCSoft case. I am a longtime player of CoH (since the beta period). It's actually possible to get a lot closer to Marvel heroes than those you came up with. It does require some good time/familiarity with the character creator. For example, you CAN go barefoot. You have to change your boot type to "flat."

The issue isn't really how close you can get to Marvel characters, but three issues in particular:

(a) whether NCSoft provided tools with the deliberate intent that they violate Marvel copyrights (e.g. if there was an "add spider to chest" button", or "add big S in a pentagram" button), and more importantly

Let's look at some parallels. If I buy a drawing program like a corel draw or similar, I could create a drawing of Homer SImpson. Doesn't mean corel did anything. Depends whether I do anything with it. If they, on the other hand, included a Homer.jpg sample clipart, that's another issue.

There's a third issue related to (b), and that's whether NCSoft is responsible for the content hosted on their servers, and that includes player-created characters.

This third area seems to be the only place that Marvel may have a case. There are some dangerous precedents set here in the areas of MP3-hosting. I dont recall how that all played out, but I seem to remember the record labels having some amount of a legal stick to hit people with.

On page 041 of this month's Wired, there's a similar article, with an accompanying graphic clearly showing a "Not The Incredible Hulk" mockup claiming to be from CoH, but with big green toes and everything!

I could go into a stationer's and buy a pen and paper, and using my considerable drawing talent (not really) draw a Marvel character. I could then photocopy that illo onto a t-shirt and wear it proudly around town for the whole world to see. Does that mean that the stationer's, the guy who taught me life-drawing, the photocopy manufacturer, the t-shirt printer have all bust Marvel's copyright? (Have I, for that matter?)

Oh, and of course, I shouldn't forget the publishers of "How to Draw Comics the Marvel Way" without whose valuable help I would have been unable to render the superhero so perfectly.

Do you think we can get Marvel to sue itself for busting its own copyright? Or maybe they'd just sue Stan Lee?

I belive that the real reason behind all this lawsuit non-sense is that marvel itself is most likely hopeing to make it's own massmog...or at least i think i read that somewhere... or maybe im just retarded.

1) there is much, MUCH, more complexity to the character generation than your pictures let on.
a) as mentioned above, you CAN have bare feet
b) you CAN utilize the same texture across the entirety of the body, including the face.
c) your 'wolvereene' and 'manspider' could have been made to look even more so like their marvel inspirations (different shirt pattern, more of a scowl to the face along with the canucks trade mark chops, and a better mask along with the glove coloration as you pointed out for the webslinger)

2) Marvel is legaly bound to persue action against any possible copyright infringement that they know of. if they knew about this, but did nothing, and then some third party comes along and proves that this is infrinement, Marvel would stand to LOSE the copyright.

SOZ DUDE HAVNT GOT ROUND TO PLAYING CoH JUZ YET BUT I DO WANT TO PLAY CoV (CIT Y OF VILLIANS) I ALWAYS THOUGHT THAT THE BAD GUYS HAD MO FUN, BUT HONESTLY DUDE, GREAT REPORT.. WILL LINK U ONCE I GOT CoV UP AND RUNNING.

HERES ONE FOR U, WOT IF MARVEL SUED DC OR DARK HORSE FOR USING CHARACTERS WITH ALT' EGOS AND "SUPER" POWERS.. I THINK MARVEL ARE JUST TRYING TO FLEX SOME MUSCLE, 'COS THEY HAVEN'T DONE ANYTHING REMOTELY FUN IN A LONG TIME AND ARE A BIT MIFFED THAT SOME ONE ELSE HAS!

It seems like a really closed minded lawsuit. Like suing crayon companies because fans of their comics draw crude superhero pictures...

I'm thinking Marvel must have some online superhero game coming out (or doesn't want to be precluded from doing so because someone else did it first) and is aggressively trying to protect its trademarks so that 5 years down the road the courts don't say 'hey, well you didn't complain about it BEFORE...'